Protecting the property pool – the family law toolkit

The time it takes for a property settlement to be determined by the Court is significant. We often advise our clients that it can take 12, 18 and even up to 24 months to reach an outcome.

Of course, life goes on after separation and finances are fluid. On one end of the spectrum, there is no halting everyday living expenses. At the other end of the spectrum,there can be the deliberate altering of corporate structures, the sale or transfer of real estate by one party without the other party’s consent and the withdrawal and diminishing of superannuation.

Family lawyers have a “toolkit” available to them to protect their client’s property interests, and to ensure that the pool at the time of Trial is as ‘intact’ as it possibly can be. Two important tools include:

Injunctions. An injunction is a court order preventing someone from doing something. If there is a real risk that an asset will be dissipated, sold or transferred by the party who has control of it, the Court will act to prevent that from happening.In some circumstances, the Court can even make orders which bind third parties (or which bind the couple in order to protect a third party’s interest in the property), including creditors.

Setting aside transactions: While injunctions are preventative, the Court’s power to set aside transactions is curative. The Court has the power to set aside transaction which would therwise defeat a family law claim (for example the sale or transfer of a property). The Court can reverse a transfer, or can order that certain funds or property be returned. Even if the transaction itself cannot be reversed, the Court will credit the person with the property they removed because of the furtive transaction. This means it will be “added back” to the pool under that person’s name, and their share of the remaining property will be reduced accordingly.

Simply put, the law tries to remove any advantage that a party may gain by inappropriately dealing with property after separation. The two tools above are powerful and complex creatures of the Family Law Act, and protecting the property pool requires specialised family law advice. DDCS Lawyers routinely advise their clients on these questions, and help their clients assess and reassess their financial landscape during litigation so that they remain in the best possible position before the Court.

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